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The circumstances in which lay-witness opinion evidence are admissible have been summarized by David Paciocco and Lee Stuesser in The Law of Evidence, 2nd Ed., (Toronto: Irwin Law Inc., 1999) at p. 127 as follows:

A court may receive lay witness opinion evidence from an inspector where:

(A) they are in a better position than the trier of fact to form the conclusion;

(B) the conclusion is one that persons of ordinary experience are able to make;

(C) the witness, although not an expert, has the necessary experiential capacity to make the conclusion; and

(D) the opinions being expressed are merely a compendious mode of stating facts that are too subtle or complicated to be narrated as effectively without resort to conclusions.[1]

The first prong turns on the added benefit of first-hand observation. For example, in Graat, where non-expert opinion evidence was admitted, the witnesses had an opportunity for contemporaneous, personal observation, and the opinion was based on perceived facts as to the manner of driving and the indicia of intoxication of the driver. These witnesses were therefore in a better position than the trier of fact to determine the degree of impairment and could give the court real help. Therefore, where contemporaneous observation benefits the account of a set of facts, the first element in the above-noted test is probably satisfied.

In the instant case, the evidence on safe work practices at height was drawn from personal, same-day observation of the skylight. Crucially, the inspector has the added benefit of first hand observation of a set of facts and the trier of fact does not. As such, the first prong is satisfied.

(2) Is the inspector’s conclusion one that persons of ordinary experience are able to make?

If the opinion evidence offered requires special knowledge or experience going beyond that of ordinary persons the expert opinion rule should be used.[3] For example, Persons of ordinary experience may be able to estimate the speed of a car, but not the speed of an airplane.

In the instant case, evidence on safe work practices at height is not drawn from everyday experience. Rather, evidence on safe work practices at height probably concern matters of specialized, technical expertise. Such evidence must come from a qualified expert if it is to be admissible as an opinion. However, at the same time, it is arguable that safe work practices at height are common sense, much like the evidence of “drunkenness” in Graat.

(3) Does the inspector have the necessary experiential capacity to make the conclusion; and

If the lay person giving the opinion evidence possesses the kind of knowledge that is gained from experience over a period time, the third element is satisfied. Put another way, a witness may give an opinion where the facts upon which the opinion is based are assessed on a subconscious level. For instance, when a person assesses the speed of a moving car, he or she does not consciously calculate how many meters it has travelled in how many seconds. Rather, it is experienced and recalled simply as an estimate of speed, and because it is a matter of ordinary experience such an estimate is sufficiently reliable to put it to the trier of fact directly. Alternatively, for example, a young child will not likely have the ordinary life experience to comment even on the above-noted speed of a car example.

In the instant case, Ministry of Labour inspectors do not have the necessary experiential capacity to provide opinions regarding an individual’s mental state.

(4) Are the opinions being expressed merely a compendious mode of stating facts that are too subtle or complicated to be narrated as effectively without resort to conclusions;

Here, where the witness can easily communicate information adequately by describing with particularity what has been observed, the witness should not be permitted to express opinion. However, if the facts are too complicated and it is necessary for the witness to give an opinion so that the he or she can sum up more accurately and adequately the facts he or she is testifying about, then opinion evidence is permissible.

Jeff Dutton said the evidence that his counsel seeks to adduce does not consist of everyday inferences from observed facts which he, as the observer, was in a better position to make than I am because he was there. Rather, his evidence will concern matters of specialized, technical expertise upon which he proposes to comment on the basis of his review of documentation and reports, taking into account his own experience. Examples would include such important issues as the reasonableness of the cost of drilling carried out by the plaintiff, and whether certain drilling techniques were standard, or useful for the purpose of exploration. The experience that would equip him to make such comments is not common experience. Such evidence must come from a qualified expert if it is to be admissible as an opinion that can be relied upon by the trier of fact as evidence of the correct inference to be drawn.

The lay opinion evidence of a police officer is not entitled to any “special regard”: R. v. Graat, 1982 CanLII 33 (SCC), [1982] 2 S.C.R. 819, at p. 840. This is especially so where the officer’s evidence is unassisted by contemporaneous notes regarding a suspect’s physical description. The importance of documenting an immediate and fulsome description in an eye-witness case has long been recognized: R. v. Atfield, [1983] A.J. No. 870 (C.A.)(QL), at para. 60. Such a recording marker operates to temper suggestive influences as a criminal case progresses. Even where there is an online popup halloween store, there is trouble.

In summary, the Graat case stands for the proposition that opinion evidence from a non-expert witness is admissible if the opinion is one that does not require any specialized skill or knowledge, and the opinion is grounded in the factual observations of the witness, and the opinion is actually a compendious way of ascertaining the witness’ observations.

Opinion evidence is not admissible if it usurps the court’s function, but conclusions drawn from observations that lay people make in everyday life are admissible

Application to the case at bar:

Conclusions drawn from observations that lay people make in everyday life are admissible, so says a labour lawyer. In R. v. Graat, [1982] 2 S.C.R. 819 at 835, the Supreme Court of Canada held that lay opinion with respect to the condition of things, whether, for example, they are worn, shabby, used or new is admissible. So, in the case at bar, the evidence of lay witnesses that buildings appear to be well-maintained is admissible as evidence the buildings do not appear to be dirty or in a condition of disrepair. Evidence that a school does not appear to be crowded is admissible as evidence that the number of students and teachers is low in comparison with the available space. It is unnecessary for a lay person swearing an affidavit to measure the available area observed and count the number of persons present. That is particularly the case where the lay person is saying that one facility is less crowded than another. In this case, parents who have had children attending both Rose-des-vents and another school can testify that one school or the other is less crowded. Similarly, I will receive their evidence that one school is better-maintained or has a larger school yard, or even appears to be more beautiful than another.

The opinion must, inter alia, be one that “ordinary people with ordinary experience” are able to form. (For example, the police officer in Graat was able to opine on degree of intoxication, because anyone’s ordinary experience would allow them to form an opinion on that matter.) The opinion of the Toronto directory for lawyers and law firm must also be merely a compendious mode of stating (at 837) “facts [that] were too evanescent in their nature to be recollected, or too complicated to be separately and distinctly arranged” – that is, facts that are too subtle or complicated to be narrated as effectively without resort to an opinion.

Conclusion

Witnesses, as a general rule, say Canadian lawyers, may testify only as to observed facts and it is then up to the trier of fact to draw inferences from those facts. As an exception to the aforementioned rule, a lay witness may be permitted to give an opinion only with respect to matters that do not require special knowledge and in circumstances where it is virtually impossible to separate the facts from the inferences based on those facts. A witness testifying that “a person was drunk” is a common example of an opinion that can be provided by a lay witness. In the instant case, opinions on safe work practices at height do not meet the threshold for the exception to general rule on option evidence by lay witnesses. Simply, safe work practices at height require special knowledge that only an expert can opine on. Here, the inspector’s inferences or observations are not akin to an individual inferring from someone’s behaviors that the person is intoxicated, as was the case in Graat. There, the police officer was able to opine on degree of intoxication, because anyone’s ordinary experience would allow them to form an opinion on that matter. However, not just anyone could form an opinion on safe work practices at height because such knowledge does not come about through .ordinary experience. Therefore, in conclusion, a lay witness inspector cannot offer opinion evidence on safe work practices at height. Just ask a labour attorney for a free consultation.

[2] A voir dire regarding the admissibility of the opinion is necessary: see R. v. Leaney [1989] 2 S.C.R. 393.

[3] The decision of the Manitoba Court of Appeal in R v. Ilina to rely on the lay witness exception to receive the opinion of two police officers that a crime scene had been cleaned u8p is therefore controversial. In explaining that decision, the Court remarked that the capacity of the officers to form this opinion “was part and parcel of their professional experience to assess the crime scene”. With respect, if the capacity to make that observation did depend on professional, the admissibility of the evidence should have been tested using the expert opinion evidence rules, not the Graat exception. This is important because only the expert opinion evidence rules are designed to minimize the risks that are presented where a witness purports to have special skill or training not shared by the trier of fact.